THIS SERVICE AND AGREEMENT (THIS “AGREEMENT”) IS BY AND BETWEEN CSP WEB-BASED MANAGEMENT INC, AND, YOU (THE “CLIENT”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE THE EMPLOYEE OR AGENT OF SUCH COMPANY OR ENTITY AND THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE COMPANY OR ENTITY. BY USING CSP WEB-BASED MANAGEMENT INC, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW, UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE TO ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, COMPANY IS UNWILLING TO LICENSE THE CSP PLUS SOFTWARE OR PROVIDE THE SERVICE (AS DEFINED BELOW) TO YOU. THIS AGREEMENT IS EFFECTIVE AS OF THE EARLIER OF THE DATE AND TIME UPON WHICH YOU SIGN UP FOR AN ACCOUNT WITH CSP PLUS; COMMENCE USING CSP PLUS OR THE SERVICE; OR ACKNOWLEDGE ACCEPTANCE OF THE AGREEMENT BY ANY OTHER METHOD (THE “EFFECTIVE DATE”).
WHEREAS, Company desires to provide the Service and CSP Plus to the Client on the Terms and Conditions set forth in and incorporated into this Agreement, and
WHEREAS, the Client desires to subscribe to use the Service and CSP Plus on the Terms and Conditions set forth in and incorporated into this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged among the parties, it is agreed as follows:
1. RECITALS. The recitals set forth above are true and correct and are by this reference incorporated herein.
2. DEFINITIONS. Capitalized terms used in this Agreement have the meanings provided in this Section unless defined elsewhere herein.
2.1. “Client Data” means any information input into CSP Plus by the Client and user behavior on the Client’s website captured by CSP Plus on the Client’s behalf. Company agrees that the Client owns all Client Data.
2.2. “Service” means account credentials to use a secure website portal provided by Company to the Client which allows the Client to customize the use and features of CSP Plus.
2.3. “CSP Plus” means the proprietary software code owned by Company and licensed to the Client under this Agreement.
2.5. “Website” means http://www.cspplus.com.
3. LIMITATION ON USE. The Client may not: (a) copy, modify, translate, or create derivative works based on the Service of CSP Plus, or permit other individuals to do so on its behalf; (b) rent, lease, transfer or otherwise transfer rights of the Service of CSP Plus; (c) use a single account for multiple business entities, unless specifically authorized by Company in writing; (d) provide third parties with access to the Client’s account, except for third parties specifically authorized by Company; (e) reverse engineer, decompile, disassemble any portion of the source code of CSP Plus or Company’s technology; or (f) attempt to learn or determine any of Company’s trade secrets.
IMPORTANT: MODIFICATION OF THE CSP PLUS CODE IN ANY WAY IS A VIOLATION OF THIS SECTION AND MAY RESULT IN TERMINATION IN ACCORDANCE WITH SECTION 8.
4. INTELLECTUAL PROPERTY. The Client agrees that all right, title and interest in CSP Plus, except for the license provided under this Agreement, are the sole and exclusive property of Company and that as a result of this Agreement, the Client does not acquire any property or other right, claim or interest, including any patent right or copyright interest in CSP Plus, any data, information or technology which is proprietary to or has been licensed to Company which is used to deliver the Services of CSP Plus, any interim data created there from or any of the information, systems, processors, equipment, computer software, derivative works, service marks or trademarks of Company, whether created before, during or after the performance of this Agreement.
5. FEES AND PAYMENT.
5.1. Fees. The Client will pay for all charges for use of CSP Plus according to the Schedule of Fees provided (“Fees”). Fees may be changed from time to time in accordance with the terms of this Agreement. Fees are due in Canadian dollars, in accordance with the payment policy in effect at the time they become due. Fees are due on the same day of each month, or the closest day in any month to the day of the month that the account was activated (“Pay Date”). Fees are due for the full month in which any part of the month is included in the term. If the Client has increased its number of members during a month such that the increase causes the Fees to increase, the account will be charged the higher amount for that month.
5.2. Method of Payment. The Client will provide Company with valid credit card or the information that authorizes Company to pull the Fees due from the Client’s bank account on the Pay Date. Upon the expiration of the Card, the Client will provide Company with a new Card. Any individual providing a Card to Company represents and warrants that he or she is authorized to use the Card and that any and all Fees billed to the Card will not be rejected. Client will not charge back any of the Fees associated with this account.
5.3. Failure to Make Payment. In the event of any failure by the Client to pay the Fees in full by the Pay Date, including in the case of a Client charge back on a Card, the Client is responsible for all expenses (including reasonable attorneys’ fees) incurred by Company in collecting such amounts plus interest at the lesser of the rate two percent (2.0%) per month or the highest rate permissible under applicable law for the actual number of days elapsed without payment. Further, in that event, Company, in its sole and absolute discretion, may suspend or terminate the Client’s account and the associated use of the Service and CSP Plus until the Fees due are received in full.
5.4. Refunds. Subject to Section 10 (Service Level Policy), any and all Fees due are NON-REFUNDABLE unless use of CSP Plus were terminated by Company without cause before the end of a term without written notice as provided for in this Agreement.
6. TERM. The term of the Agreement shall be one calendar month, and the Agreement shall automatically renew on a month-to-month basis unless terminated.
7.1. By Client. The Client may terminate the Agreement at any time, with or without cause, by providing Company written notice.
7.2. By Company. Except as provided in the Agreement, Company may terminate the Agreement, with or without cause, in advance of any renewal term by providing written notice to the Client no less than fourteen days prior to the beginning of the next term.
7.3. Effect of Termination. Upon termination of the Agreement, access by the Client to Service to use CSP Plus will terminate and Client must destroy all copies of CSP Plus, including any user documentation. Within ninety days of the date of termination, at the Client’s request and expense, Company shall return any written Client Data in its possession in a commercially reasonable manner. In the event that Client does not request the return of its Client Data within such period of time, Company may destroy the written Client delete all Data from its server. Company is not responsible to provide data held on the CSP Plus server. Regardless of how the Agreement is terminated, Client is liable for all charges incurred up to and including the date of termination. If Client terminates the Agreement, payment obligations for the portion of any unused term shall be immediately due in full.
8. REPRESENTATIONS AND WARRANTIES. The Client represents and warrants to Company: (a) that it will perform its rights, duties and obligations under the Agreement and at all times be in compliance with all applicable federal, provincial and local laws, rules and regulations; (b) that it shall not be in violation of any obligation, contract or agreement by entering into this Agreement, by performing its obligations under the Agreement, or by authorizing and permitting Company to provide the Service hereunder; (c) that it shall comply with all of the terms and conditions of the Agreement; (d) that all information provided by the Client to Company is truthful, accurate, and complete, and is not misleading in any material respect; and (e) it owns or otherwise has the right to use Client Data as contemplated by the Agreement; and (f) that all payment, billing or enrollment information provided by Client is accurate, complete, and current.
9. COVENANT TO NOT COMPETE. The Client agrees that during the term of the Agreement and for one year thereafter, the Client will not develop, offer, sell or distribute a competing service to the Service of CSP Plus provided under Agreement. A competing service is a service that assists website owners with developing and managing members-only sections and subscription-based features on its website. Client understands that violation of this clause is grounds for immediate termination of the Agreement by Company with no liability on the part of Company and further Client understands that Company may seek equitable relief to stop the violation and competing activity as well as any other relief available under the law.
10. SERVICE LEVEL POLICY.
10.1. Company will supply technical support, via phone and email as it pertains to the Service and CSP Plus.
10.2. If there is unscheduled monthly downtime exceeding one hour two times during the term of this Agreement, Company will promptly credit the Client 5% of the next monthly fee. If there is unscheduled monthly downtime exceeding one hour three times during the term of this Agreement, Company will promptly credit the Client an additional 10% of the next monthly fee.
11.1. Data Storage. The Client bears the exclusive risk of loss for the Client Data. Company does not warrant that Client’s use of the Service will be without error or disruption. Client agrees that it is solely responsible to determine whether the Service sufficiently meets the Client’s requirements. Unless specifically set forth elsewhere herein, Company is not responsible for Client Data residing on Company’s server.
11.2. Use of Client Data. The Client grants Company a license to use the Client Data for any purpose directly in furtherance of the purposes of this Agreement, including, without limitation, the use in an aggregate non-personally identifiable form in order to improve the Company Service of CSP Plus. Company may not disclose the Client Data to any third party unless (a) directed by the Client; (b) the disclosure is made in response to a court order; or (c) is in an aggregate non-personally identifiable form.
11.3. Request for Client Data. Company will provide an export of all Client Data in the possession of Company upon the Client’s request and at Client’s expense.
12. CLIENT USE POLICY.
12.1. Company imposes policies on the use of the Service of CSP Plus (“Use Policy”). The Use Policy may be modified as the needs of Company and safety and integrity of its business reasonably requires. The Client is solely responsible for compliance with the Use Policy. The Use Policy includes of the following minimum restrictions:
a. Client shall process all electronic payment transactions in compliance with the generally accepted minimum standards for such transactions, but not less than those standards specified by the Payment Card Industry Data Security Standard, as amended.
b. No sending of unsolicited email messages. The Client must immediately provide written notice to Company if it learns that the Client’s domain has been listed by SpamHaus and take all commercially reasonable efforts to be removed from the SpamHaus index.
c. No racial, ethnic, political, hate-mongering or otherwise objectionable content.
d. No pirating or hacking (e.g. Warez) of MemberMouse or the Third Party Software.
e. No use of Company URLs in emails.
f. No pornographic, adult only, sexually oriented or related web sites/creatives as reasonably determined by Company.
12.2. A violation of the Use Policy is a material breach of the Agreement. If Company, in its sole and absolute discretion, finds that the Client is in violation of the Use Policy, Company may terminate the Agreement immediately, without any liability to Company.
13. MARKETING. The Client grants Company a non-exclusive transferable license to use, reproduce, publish, display, transmit and broadcast Client’s name, logos, trademarks, trade names, service marks, URLs and slogans to advertise, market, promote and publicize Company, including, without limitation, use in marketing materials and “clients and testimonial page.”
14. NO ASSIGNMENT OR SALE. This Agreement shall be binding upon, and inure to the benefit of Company, its successors and assigns, and the Client and the Client’s heirs, executors, administrators and legal representatives. The duties and covenants of the Referring Party under this Agreement may not be delegated or assigned by the Client without the prior written consent of Company, and any attempted delegation or assignment without such prior written consent shall be null and void and without legal effect.
15. BINDING ON RELATED PARTIES. Any references to “you”, “your”, and “Client” refers to the entity subscribing to the Service and use of CSP Plus hereunder. Each party agrees that any of its representatives, employees, or any person or entity acting on its behalf with respect to the provision of or use of the Service, shall be bound by, and shall abide by, these Terms and Conditions. You further agree that you are bound by these Terms and Conditions whether you are acting on your own behalf or on behalf of a third party.
16.. DUTY TO DISCLOSE CHANGE OF OWNERSHIP. If the Client’s ownership changes whereby any entity acquires a majority ownership or other controlling interest in Client during the term of this Agreement, the Client shall immediately disclose the name of such entity to Company.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements or understandings between the parties with respect to such subject matter.
18. LIMITATION ON LIABILITY. CLIENT ACKNOWLEDGES AND AGREES THAT COMPANY SHALL NOT BE LIABLE HEREUNDER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT OR REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY COMPANY’S TOTAL CUMULATIVE LIABILITY HEREUNDER, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED AN AMOUNT EQUAL TO ALL AMOUNTS ACTUALLY RECEIVED BY COMPANY FROM CLIENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCURRENCE OF ANY SUCH LIABILITY. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF COMPANY ARISING OUT OF THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE REASONABLE AND ARE INTEGRAL TO THE AMOUNT OF CONSIDERATION LEVIED IN CONNECTION WITH CLIENT’S USE OF THE SITE, SERVICE OR SOFTWARE PROVIDED BY COMPANY HEREUNDER, AND THAT, WERE COMPANY TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH CONSIDERATION WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.